2015.55: Texas SB344 vs. HB861

 Posted on April 22,2015 in Uncategorized

Texas Senate Bill 344:

By: Huffman S.B. No. 344A BILL TO BE ENTITLED AN ACT relating to the prosecution of the offense of online solicitation of a minor.BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:SECTION 1. Section 33.021(a)(1), Penal Code, is amended to read as follows:(1) "Minor" means:(A) an individual who is [represents himself or herself to be] younger than 17 years of age; or(B) an individual whom the actor believes to be younger than 17 years of age.SECTION 2. Section 33.021, Penal Code, is amended by amending Subsections (b), (d), and (e) to read as follows:(b) A person who is 17 years of age or older commits an offense if, with the intent to commit an offense listed in Article 62.001(5)(A), (B), or (K), Code of Criminal Procedure [arouse or gratify the sexual desire of any person], the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally:(1) communicates in a sexually explicit manner with a minor; or(2) distributes sexually explicit material to a minor.(d) It is not a defense to prosecution under Subsection (c) that [: [(1)] the meeting did not occur [; [(2) the actor did not intend for the meeting to occur; or [(3) the actor was engaged in a fantasy at the time of commission of the offense].(e) It is a defense to prosecution under this section that at the time conduct described by Subsection [(b) or] (c) was committed:(1) the actor was married to the minor; or(2) the actor was not more than three years older than the minor and the minor consented to the conduct.SECTION 3. The change in law made by this Act applies only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is governed by the law in effect on the date the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense occurred before that date.SECTION 4. This Act takes effect September 1, 2015.

Texas House Bill 861:

84R17156 JRR-F By: Dale, King of Parker, Sheffield, Burkett,H.B. No. 861Frullo, et al. Substitute the following for H.B. No. 861: By: HerreroC.S.H.B. No. 861A BILL TO BE ENTITLED AN ACT relating to the prosecution of the offense of online solicitation of a minor.BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:SECTION 1. Sections 33.021(b), (d), and (e), Penal Code, are amended to read as follows:(b) A person who is 17 years of age or older commits an offense if, with the intent to induce a minor to engage in conduct with the actor or another person that would constitute an offense under Section 21.11, 22.011, 22.021, 43.25, or 43.26 [arouse or gratify the sexual desire of any person], the person, over the Internet, by electronic mail or text message or other electronic message service or system, or through a commercial online service, intentionally:(1) communicates in a sexually explicit manner with a minor; or(2) distributes sexually explicit material to a minor.(d) It is not a defense to prosecution under Subsection (c) that [: [(1)] the meeting did not occur [; [(2) the actor did not intend for the meeting to occur; or [(3) the actor was engaged in a fantasy at the time of commission of the offense].(e) It is a defense to prosecution under this section that at the time conduct described by Subsection [(b) or] (c) was committed:(1) the actor was married to the minor; or(2) the actor was not more than three years older than the minor and the minor consented to the conduct.SECTION 2. The change in law made by this Act applies only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is governed by the law in effect on the date the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before the effective date of this Act if any element of the offense occurred before that date.SECTION 3. This Act takes effect September 1, 2015.

Both bills restore the "fantasy" defense, which is the other half of the amendment required to bring Section 33.021(b) and (c) in compliance with the First Amendment.

Huffman's Senate Bill 344 is plainly superior, on First Amendment grounds, to Dale's House Bill 861 because Huffman's bill eliminates the prosecution of a defendant who is talking with an adult and knows it despite the adult's "representing" himself as a child. Dale's bill leaves the door open to such prosecutions.

Huffman's bill is also superior on general legal grounds. Dale's description of the required intent under subsection (b) is "to induce a minor to engage in conduct with the actor or another person that would constitute an offense...." This language comes from Section 15.031 of the Texas Penal Code, the general solicitation-of-a-minor statute, and it will not serve the intended purpose. When a defendant induces a child to have sex with him, the child's conduct does not constitute an offense. It is the defendant's conduct that constitutes an offense. We know what the legislature is trying to say; Huffman's bill says it, but Dale's does not.

Both bills limit the subsection (e) defense to violations of subsection (c) (actual solicitation). I think the reasoning may be that a defendant who is married to a child does not intend to commit a crime if he solicits her for sex. But age proximity and marriage are affirmative defenses under the predicate statutes; does the existence of an affirmative defense mean that the conduct would not be an offense? ((Further, the 18-year-old boyfriend who solicits his three-years-young girlfriend for sex may still be violating Texas Penal Code Section 43.25, which has an affirmative defense only for a two-year age difference)) We don't want to prosecute defendants for talking dirty to their spouses or their age-appropriate girlfriends, so why not simplify by applying the defense to (b) and (c)?